#### Yeager *v.*Mansel, Appellant.

*Sale*— *Action for purchase-price*— Promissory *notes*— *Lack of title*— Promise *not to sue until title is acquired*— Claims *of third persons tarred ty statute of limitations.*

One who has given his notes for the purchase of lumber cannot resist payment on account of lack of title in the seller and a promise by the seller not to bring an action upon the notes until he had acquired title, where by reason of lapse of time any claim to the lumber by any one is barred by the statute of limitations.

Argued March 11, 1919.

Appeal, No. 157, Jan. T., 1919, by defendant, from judgment of C. P. Lycoming Co., Sept. T., 1917, sustaining motion for judgment for want of sufficient affidavit of defense in the case of Sophia M. Yeager, Executrix of John H. Yeager, surviving partner of the copartnership composed of S. Bacon Eilenberger and John H. Yeager, doing business under the firm name of Eilenberger & Yeager, v. James Mansel.

Before Brown, C. J., Stewart, Frazer, Walling and Simpson, JJ.

Affirmed.

Assumpsit upon two promissory notes. Before Whitehead, P. J.

Judgment for plaintiff for want of sufficient affidavit of defense. Defendant appealed.

*Error assigned*was, among others, (8) the judgment of the court.

*Max L. Mitchell,*with him *H. W. Pyles,*for appellant.

—The bar of the statute of limitations is a mere personal privilege of which a debtor may take advantage or not, as he sees fit, and he cannot be compelled to plead either for himself or for the benefit of others: Biddle v. Moore, 3 Pa. 161; Barclay v. Barclay, 206 Pa. 307; Hogle v. DeLong Hook & Eye Co., 248 Pa. 471.

A vendee may defend an action to recover a balance of unpaid purchase money even though he continues in pos*328session: Steinhauer v. Witman, 1 S. & R. 438; Magaw v. Lothrop, 4 W. & S. 316; Knepper v. Kurtz, 58 Pa. 480; Cross v. Noble, 67 Pa. 74; Stephens v. Black, 77 Pa. 138.

*John C. Ingham,*with him *Clarence E. Sprout,*for appellee.

In order to constitute a defense on the ground of an outstanding title in another, the defendant must show that he has suffered an eviction or loss of possession on that account: Krumbhaar v. Birch, 83 Pa. 426; Geist v. Stier, 134 Pa. 216; Morrison v. Whitfield, 46 Pa. Superior Ct. 103; Chambers v. Smith, 183 Pa. 122.

Even were the defendant’s title otherwise defective, the statute of limitations has vested in him an absolute and unassailable title: Schall v. Williams Valley R. R., 35 Pa. 191; Leeds v. Bender, 6 W. & S. 315; Altoona, etc., R. R. Co. v. Pittsburgh, etc., R. R. Co., 203 Pa. 102.

The defendant must use good faith to his covenantor, and he must set up every defense available against an outstandingtitle: McCloskey v. Powell, 123 Pa. 62.

April 14, 1919:

Pee Cubiam,

The notes upon which this action was brought were given by the defendant to the payees for lumber they had sold him. He sets up as his only defense lack of title in them to the timber and an unkept promise or agreement by them that no action would be brought upon the notes until they had acquired title to it. He cut and removed all of it prior to March, 1909, and, after he had agreed to waive the statute of limitations in any action that might be brought against him on the notes, no steps were taken to collect them until November 7,1917, when this action was brought. More than eight years had elapsed from the time the defendant had cut and removed the timber, and any claim to it by any one was then barred by the statute of limitations. For this reason the learned court below correctly held the affidavit of defense to be unavailing. In Getty et al. v. The Pennsylvania Institu*329tion for the Instruction of the Blind, 194 Pa. 571, the building contract provided that the retained percentage should not be payable until all mechanics and material-men had, in writing, acknowledged that they had been fully paid by the contractors for all work done and materials furnished. After the completion of the building a final installment was due to the contractors, who in the meantime had made an assignment for the benefit of creditors. In holding that this sum could not be retained by the institution after the time for filing mechanics’ liens had expired, even if the subcontractors had not acknowledged that they had been fully paid, we said: “When, under the limitations of the mechanic’s lien law, defendant is beyond peril as to liens against its buildings and grounds, it owes a debt, in such amount as is yet unpaid of the contract price, personally to the prin-' cipal contractors, which it is bound to pay to the assignee to whom the assets have passed.”

Judgment affirmed.